Christopher Symons v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 15 2018, 6:37 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey W. Elftman Curtis T. Hill, Jr.
Public Defender Attorney General of Indiana
Kokomo, Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Symons, October 15, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-775
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause No.
34D01-1502-F4-184
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-775 | October 15, 2018 Page 1 of 10
Case Summary and Issue
[1] Christopher Symons’ probation was revoked, and he was ordered to serve the
entirety of his previously suspended six and one-half year sentence at the
Indiana Department of Correction. Symons appeals the trial court’s order,
raising only one issue for our review: whether the trial court abused its
discretion in determining his sanction for the probation violation. Concluding
the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[2] On February 24, 2015, Symons was charged with dealing in methamphetamine,
a Level 4 felony, neglect of a dependent, a Level 5 felony, and possession of
chemical reagents or precursors with intent to manufacture a controlled
substance, a Level 6 felony. On October 13, Symons pleaded guilty to dealing
in methamphetamine, a Level 4 felony, in exchange for the State dismissing the
remaining charges and Symons was sentenced to 3,650 days of which 2,190
were to be executed with 1,960 days suspended to probation.
[3] While incarcerated, Symons completed the Therapeutic Community Program
and the trial court granted Symons’ petition for a sentence modification on
March 17, 2017. The terms of his sentence modification required Symons to
enroll in community corrections and probation. As a special condition of his
probation and the Community Transition Program, Symons was required to
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participate in electronic bracelet monitoring, day reporting, and to enroll in the
Howard County Re-Entry Court Program.
[4] The Howard County Re-Entry Court Program is “a highly-supervised
rehabilitative program available, for a maximum of three years, to individuals
on parole, probation, and community transition, as well as those in Community
Corrections due to a sentence reduction or modification.” Brief of Appellee at
6. The re-entry court requires participants, among other things, to regularly
report to caseworkers, participate in substance abuse treatment and counseling,
comply with the terms of their case and treatment plans, abstain from using or
possessing controlled substances, submit to regular drug testing, obtain
employment, submit to searches of their persons and property, and refrain from
committing criminal offenses. See id. During the seven months Symons was
enrolled in the program, he traveled to unauthorized locations and
misrepresented the numbers of hours he had worked.
[5] On November 22, 2017, the trial court found Symons had absconded from the
re-entry court and terminated him from the program. The same day, the State
filed a petition to revoke Symons’ probation, alleging Symons’ failure to
successfully complete re-entry court violated the conditions of his sentence
modification order. Symons initially agreed to plead true to the violation in
exchange for being placed on a direct commitment to in-home detention for the
remainder of his suspended sentence. However, on January 11, 2018, his
probation officer, Megan Enright, filed a report with the trial court
recommending the trial court reject the plea agreement, stating:
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While [Symons] was on the Howard County Re-Entry Program
he was on a GPS bracelet with specific rules that he needed to
follow. [Symons] was out of place on numerous occasions while
on the bracelet and was sanctioned for these actions. [Symons]
continued to disregard the rules after he served the sanction[s]
and continued to go where he wanted to go, when he wanted to
go regardless of if he had permission or not.
Appellant’s Appendix, Volume 2 at 97. Enright concluded, “[Symons] is being
set up for failure as he has already proven to the Court that he won’t follow the
rules of the CTP/In Home Detention Program.” Id.
[6] At a probation revocation hearing on February 8, 2018, the trial court followed
Enright’s recommendation by rejecting Symons’ proposed plea agreement and
Symons indicated that he would plead true to the violation without a plea
agreement. Symons then admitted to the violation and the trial court found
that he had violated the terms of his probation. Proceeding to disposition of the
violation, Symons testified on his own behalf, stating:
On the Re-entry Program, I was, it was just myself and my three
boys that I was taking care of, so, you know, a lot of this stems
back to, you know, the out of places where, you know, a lot of
guys being allowed to go to the gas station. I had no one
currently to, you know, to take the vehicle in and fill and [sic] it
up with gas. You know, I was driving a hundred miles a day,
you know, just back and forth to work was, you know, forty
miles there, forty miles back so . . . .
Transcript, Volume II at 24. As for the other violation of misrepresenting the
number of hours that he had worked, Symons stated:
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There was a mishap with some miscommunication with me
writing how many hours I had worked one week and, you know,
that was part of the, you know, violating the rules on Re-entry
....
Id. at 25. After hearing arguments regarding possible sanctions for Symons’
violations, the trial court concluded:
As I recall, Mr. Symons didn’t have any problem passing any of
the drug screens during the period of time that he was on Re-
entry. One of the issues that we have since all substance abuse
assessment tools are basically self-reporting, we have an
individual who’s originally charged with Dealing in
Methamphetamine and the question becomes is he a
methamphetamine addict or is he a methamphetamine dealer?
And a lot of folks are claiming that they are addicts and they
want a chance to deal with their addiction and so we send them
to the Therapeutic Community where instead of serving a prison
sentence that they might otherwise deserve as a drug dealer, they
get out upon successful completion and go into the Re-entry
Program. One of the things that I’ve noticed during the course of
the Re-entry Program is that addicts are much more successful
than drug dealers because drug dealers are there solely because of
criminal thinking and their drug use has been incidental to that
and generally speaking, that sorts itself out pretty quickly. And
in fact, in Mr. Symons’ case, he was violated before he even
completed the CTP. I think what that shows is that the State of
Indiana was correct back in 2015 when they charged him with
Dealing in Methamphetamine, that he is a methamphetamine
dealer, not a drug addict. And, you know, we gave him a
tremendous opportunity by letting him out of prison when he still
had 2,691 days hanging over his head. It’s no reason to believe
that there’s anything that we can offer in this community that’s
going to be of benefit to Mr. Symons. Accordingly, I’m going to
impose the balance of the Defendant’s suspended sentence,
which the court finds . . . as of today, is 2,408 days . . . .
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Id. at 27-28. Symons now appeals.
Discussion and Decision
I. Standard of Review
[7] It is well settled that:
Probation is a matter of grace and a conditional liberty which is a
favor, not a right. The trial court determines the conditions of
probation and may revoke probation if those conditions are
violated. The decision to revoke probation is within the sound
discretion of the trial court. And its decision is reviewed on
appeal for abuse of that discretion.
Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). “An abuse of
discretion occurs when the decision is clearly against the logic and effect of the
facts and circumstances before the court.” Id. We consider only the evidence
most favorable to the judgment, and we will not reweigh the evidence or judge
the credibility of the witnesses. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App.
2006).
II. Probation Revocation
[8] Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640
(Ind. 2008). First, the trial court makes a factual determination that a violation
of a condition of probation actually occurred and then, if the violation is
proven, the trial court must determine if the violation warrants revocation of the
probation. Id. “However, even a probationer who admits the allegations
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against him must still be given an opportunity to offer mitigating evidence
suggesting that the violation does not warrant revocation.” Id. And, if the trial
court finds that a violation occurred, the court may impose one of the following
sanctions:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(h). A defendant is entitled to challenge the sanction a
trial court decides to impose after revoking probation. Stephens v. State, 818
N.E.2d 936, 939 (Ind. 2004).
[9] Symons does not contest that violations actually occurred: he admits that he
was unsuccessfully discharged from the Howard County Re-Entry Court
Program in violation of the conditions of his sentence modification order.
Instead, Symons argues the trial court abused its discretion by “neglecting to
examine the circumstances involved in this case, . . . it simply decided that any
violation, irrespective of the specific facts, warrants revocation.” Appellant’s
Brief at 9-10. Specifically, Symons argues:
The trial court’s statement that violation of re-entry leaves no
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other options for community supervision as lowering the
supervision would merely lead to a person not getting caught for
criminal behavior shows a predetermination prior to the
presentation of mitigating evidence, and an abuse of discretion.
The abuse of discretion is further shown by the trial court
applying as an aggravating factor the Defendant’s passing of drug
screens. The trial court seemed to use this sole piece of
information to issue a fully executed sentence.
Id. at 10 (citations to transcript omitted).
[10] This, however, is the entirety of Symons’ argument and it is left unsupported by
cogent reasoning or adequate citation to authority. “Indiana Appellate Rule
46(A)(8) provides that the argument section of the appellant’s brief must
‘contain the contentions of the appellant on the issues presented, supported by
cogent reasoning,’ along with citations to the authorities, statutes, and parts of
the record relied upon, and a clear showing of how the issues and contentions
in support thereof relate to the particular facts under review.” D.H. by A.M.J. v.
Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct. App. 2018). Symons has therefore
waived this issue for our review. See, e.g., Reed v. Reid, 980 N.E.2d 277, 297
(Ind. 2012) (“Failure to comply with this rule results in waiver of the argument
on appeal.”).
[11] Waiver notwithstanding, even expanding Symons’ arguments to their logical
conclusions, we would still conclude the trial court acted within its discretion.
First, contrary to Symons’ assertion, we do not read the trial court’s statement
of reasons for revoking Symons’ probation as evidencing “a predetermination
prior to the presentation of mitigating evidence[.]” Appellant’s Br. at 10.
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Nothing in the record suggests the trial court employed such a policy and we
have routinely held the violation of a single condition of probation is sufficient
to revoke probation. Richardson v. State, 890 N.E.2d 766, 768 (Ind. Ct. App.
2008).
[12] Secondly, we do not read the trial court’s statement as weighing Symons’
passing of drug screens as an aggravating factor. We do, however, caution trial
courts against injecting their personal philosophical views into their reasoning
for one sanction or another, and we have explained that within the context of
original sentencing, “it is improper for a trial court to impose a harsh sentence
on the basis of the trial court’s desire to send a personal philosophical message
about the general severity of an offense, rather than focusing upon facts that are
peculiar to the particular defendant and offense.” Puckett v. State, 956 N.E.2d
1182, 1188 (Ind. Ct. App. 2011). But we do not find that to be the case here.
Although the trial court discussed Symons’ underlying conviction of dealing in
methamphetamine, it did so in the context of Symons’ probation violations and
their relation thereto. Moreover, the trial court showed considerable grace by
not only ordering a portion of his original sentence to be suspended, but then
again by granting Symons’ petition to modify that sentence. “Once a trial court
has exercised its grace by ordering probation rather than incarceration, the
judge should have considerable leeway in deciding how to proceed.” Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007). And although such discretion “is not
boundless and it may be abused[,]” Puckett, 956 N.E.2d at 1188, we find
nothing so egregious as to warrant reversal here.
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Conclusion
[13] Concluding the trial court acted within its discretion in ordering Symons to
serve the entirety of his previously suspended sentence at the Indiana
Department of Correction, we affirm.
[14] Affirmed.
Baker, J., and May, J., concur.
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